TB8-24985

RAD File / Dossier de la SAR : TB8-24985 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX Personne en cause XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 30, 2020 Date de la décision Panel Cheryl Braden Tribunal Counsel for the person who is the subject of the appeal Rodney L. Woolf Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. [2] XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Appellant) is a citizen of Bahrain and Pakistan. He is a Sunni Muslim. He was born in Pakistan and moved to Bahrain in 1992, where he eventually married and had five children. [3] The Appellant alleges that he began having problems when his wife decided to run as a candidate in the XXXX XXXX XXXX XXXX XXXX. He alleges that her XXXX XXXX threatened him and his wife in attempts XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [4] It is alleged that on November 6, 2014, supporters of opposing XXXX XXXX XXXX XXXX XXXX XXXX XXXX and physically assaulted the Appellant. The Appellant alleges that he became aware that his life was in danger in Bahrain due to his XXXX XXXX XXXX XXXX XXXX XXXX and also on the basis of his Pakistani nationality. As a result, he relocated back to Pakistan in August 2016, however, he alleges that after he arrived in Pakistan he received further threats that his life would also be in danger there. [5] The Appellant obtained a visa to travel to Canada XXXX XXXX XXXX XXXX2016. He returned to Bahrain from Pakistan on XXXX XXXX, 2016 and then travelled to Canada on XXXX XXXX XXXX2016. He later made an inland claim for refugee protection on January 19, 2017. His claim was heard before the Refugee Protection Division (RPD) on July 9, 2018 and September 7, 2018. The RPD dismissed the claim orally at the conclusion of the hearing on the basis that the Appellant lacked credibility and had failed to establish that he would face a serious possibility of persecution in the future if he returned to Bahrain. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [7] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The standard of review of the RPD's findings is correctness, except in limited circumstances in which it is demonstrated that the RPD enjoyed a meaningful advantage in assessing oral evidence. [8] Having reviewed the evidence in the RPD record and listened to the audio recording of the hearing, I find that the RPD did not have a meaningful advantage over the RAD in assessing the evidence before it. I have therefore applied a correctness standard in my review. RPD HEARING AND DECISION [9] The RPD hearing first convened on July 9, 2018. At the outset of the hearing, the Appellant attested that his Basis of Claim (BOC) narrative was true, complete and correct. Following this attestation, the panel provided the Appellant with additional documentary evidence consisting of an article XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX2. The article described that the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [10] The Appellant testified before the RPD that he had been unaware of the information in the article and sought a postponement, which was granted. When the hearing reconvened on September 7, 2018, the Appellant testified that he had since confronted his wife, who had admitted to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He further testified that not only had he himself been XXXX XXXX XXXX XXXX, but nobody in either of their families had been aware either. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX3. [11] The RPD accepted that the Appellant was at one point married to the wife (now ex-wife), however, the panel found that given that the Appellant's ex-wife had publicized her new XXXX XXXX XXXX XXXX XXXX, it could not accept the Appellant's testimony that the Appellant's five children and his former in-laws would not have learned of the ex-wife's new marriage. The panel drew an adverse credibility inference against the Appellant on the basis that he had attested that his BOC narrative was true, complete and correct at the earlier sitting, when it did not indicate that his ex-wife had divorced him or remarried to a new spouse. [12] The RPD further drew adverse inferences with respect to the Appellant's credibility on the basis of numerous omissions from the BOC narrative, including allegations of a physical attack on the Appellant in June 2016, numerous threats allegedly made to him through his ex-wife, an allegation that he was terminated from his former job in 2015 on the basis of his ex-wife's political involvement as well as his own nationality and religion, and the allegation that his ex-wife held and was known for anti-Shia viewpoints which radical Shias in Bahrain blamed on and imputed to the Appellant. While these allegations were made during testimony at the hearing, none were included in the BOC narrative that was filed at the time the Appellant made his claim. [13] Further with respect to the alleged physical assault against the Appellant in June 2016, the RPD noted that the copy of the corroborative medical report presented4 was of poor quality and difficult to read, and found that the Appellant did not make reasonable efforts to obtain or present the original document. As a result, the panel gave the report little weight and drew a further adverse inference. [14] The RPD also gave no weight to the corroborative letter from the Appellant's ex-wife,5 as she had written it after the divorce but still presented herself in the letter as the Appellant's current spouse, and it was conceded by the Appellant at the hearing that she was not trustworthy. [15] With respect to the allegations of risk due to the Appellant's Pakistani nationality, the RPD noted that there was no objective evidence to support the assertion that Pakistani nationals are subjected to persecution in Bahrain. [16] Finally, the RPD noted while the claim was based on the Appellant's public political support and association with his ex-wife, the Appellant is no longer married to her. The panel further noted that there was no credible evidence of any problems for either the Appellant, his ex-wife or their children since 2014, even though his ex-wife had publicized her potential XXXX XXXX XXXX XXXX XXXX XXXX that was set for later in 2018. The RPD concluded that the Appellant had not established a well-founded fear of persecution or section 976 risk in Bahrain if he were to return in the future. [17] While the Appellant alleges to be a citizen of both Bahrain and Pakistan, the RPD focused on the allegations as they related to fears of persecution in Bahrain only. Since the panel found that the Appellant faces neither a serious possibility of persecution nor a section 97 risk in Bahrain, it did not find it necessary to consider the allegations related to risk in Pakistan. ANALYSIS [18] On appeal, the Appellant argues that the RPD made multiple errors in its credibility findings upon which the decision is founded. He further submits that the RPD erred by applying the wrong legal test in its assessment of forward-facing risk, and by basing its risk assessment on unsupported plausibility findings. [19] As outlined below, I find that the RPD's credibility determinations are correct. I further find that the RPD did not err in its conclusion with respect to the future risk faced by the Appellant. While I agree that the RPD misstated the legal test as it relates to the claim made on Convention grounds, this is not a determinative error. Following my own independent analysis of the Appellant's claim, I find that he has failed to establish that he will face a serious possibility of persecution, or a section 97 risk on a balance of probabilities, if he returns to Bahrain. [20] Given this finding, it is not necessary to analyze the risk alleged by the Appellant in Pakistan. The inaudible portions of the reasons do not nullify the RPD's credibility findings, which are correct [21] The Appellant has advanced multiple arguments regarding the RPD's credibility findings. Having reviewed the record and the arguments before me, I find that a number of these result from the decision having been made orally and later transcribed by a third party, rather than the presiding member having directly authored a written decision. I note that the decision is stamped as an "unrevised transcript of decision delivered orally"7. [22] The Appellant submits that two inaudible notations in the decision render the decision unintelligible and unreasonable. These occur in the portion of the oral decision in which the panel is discussing the new marriage of the Appellant's ex-wife, and the Appellant's contention that he and his family members in Bahrain were unaware of the divorce and remarriage prior to receiving the news article disclosed by the RPD at the sitting held in July 2018. However, it is noted that the wife appears to have made no secret of the matter of being married XXXX XXXX XXXX XXXX XXXX. Exhibit 7 from April 2018 puts the fact of the current marriage in the public domain, so in the panels view to assert as the claimant does that nobody in the family connection knew about this strange credulity and (inaudible) belief. Again the fact of the current marriage to the other person appears to be public knowledge, appears to have been publicized in the press in Bahrain and in the panel's view could hardly have escaped the attention of the claimant's family or his-in-laws as he now alleges. So that is one area in which the panel must draw a negative inference. The initial profound (inaudible) of the panel has been displaced by a greater concern in this regard. [Emphasis added]8. [23] Having listened to the audio recording I find that the audio is clear and unmistakable. The first excerpt which was transcribed as "strange credulity and (inaudible) belief" is in fact "strains credulity and begs belief"9. The inaudible word in the second excerpt which is transcribed as "the initial profound (inaudible) of the panel..." is in fact "puzzlement"10. [24] The Appellant acknowledges that not every gap in a transcript will be determinative, but submits that he is prejudiced by this gap in a critical part of the decision, which prevents him from properly challenging the RPD's finding on appeal. [25] I do not accept this argument. As previously stated, I find that the audio of these excerpts is clear and understandable in the recording, to which the Appellant has access. Secondly, I find that even in the absence of these words, the RPD's finding and rationale were contextually clear. Here the panel is describing the reasons that it does not believe the Appellant's testimony that his family in Bahrain were all unaware of his divorce prior to the July 2018 RPD sitting. The panel clearly indicates that it does not believe this testimony, why it does not believe it, and states that it is drawing an adverse inference on that basis. [26] Furthermore, I note that while the Appellant took issue with the two missing words in this portion of the decision, he did not raise any arguments with respect to the RPD's conclusion that he was not credible in his testimony that he and his family had been unaware of his ex-wife's remarriage prior to receiving the article from the RPD on July 9, 2018. This was essentially a finding by the RPD that the Appellant's testimony was not plausible. [27] Bearing in mind that implausibility findings should only be made "in the clearest of cases... if the facts as presented are outside the realm of what could reasonably be expected"11, I agree with the RPD. Given that this information was publicized in a Bahraini newspaper approximately two months earlier for the purpose of promoting the political profiles of the ex-wife and her new spouse, I find that it is reasonable to expect that the Appellant's family in Bahrain would have learned that the ex-wife had married another man. [28] I further note that the Appellant's testimony was inconsistent in this area. While he maintained that his family only became aware of the divorce and remarriage when he called and told them about it in July 2018, when he was questioned specifically about the circumstances of his conversation with his ex-wife in which he allegedly confronted her about the divorce he testified as follows: Member: What happened between the last hearing date and the present? Appellant: When it appeared in the newspaper, I called my wife and asked her on the phone. She said that when you left Bahrain, I applied within 2 months for a divorce letter over there. Which no one was aware of. And when it has appeared in the newspaper, everyone knows I have remarried again and have taken a divorce from you12. [29] The Appellant's own testimony that his ex-wife told him that everyone knew about the divorce once it was published in a XXXX XXXX XXXX XXXX XXXX XXXX XXXX is not consistent with his testimony that his family did not find out until sometime in July 2018 when the Appellant told them himself. [30] While the fact of the family's knowledge of the divorce is not central to the claim, I find that the Appellant's implausible and inconsistent testimony in this area diminishes his credibility overall. The RPD was correct in its treatment of the allegations and evidence of the June 2016 assault [31] The Appellant further argues that the RPD erred in its treatment of the medical report related to an alleged June 2016 assault on the Appellant. The Appellant notes that the RPD reasons begin by stating "I also find that the claimant isn't at fault of Rule 42 of the RPD rules" but ends by finding the Appellant in default of Rule 42, which the Appellant submits to be irreconcilably contradictory statements. [32] Having reviewed the audio recording, I find that again, the issue is with the transcription and not with the panel's actual words. The apparently contradictory statement in the written version of the reasons which indicates "I also find that the claimant isn't at fault of Rule 42..." should read "I also find that the claimant is in default of Rule 42" [Emphasis added]13. [33] This is clear in the audio recording and also is contextually consistent with the panel's reasons that follow this statement, which outline the Appellant's testimony about his efforts to comply with RPD Rule 42. Rule 42 requires a party to provide an original copy of a document it wishes to rely on at the RPD hearing. The reasons given here by the RPD clearly outline that the panel was of the view that the Appellant had not made sufficient efforts to produce the original document. [34] Accordingly, I reject the argument that the RPD was inconsistent in its statements regarding the Appellant's compliance with Rule 42 as it relates to the medical report. Although the transcription error is regrettable, I find that the RPD's finding and rationale are clear and intelligible. [35] Moreover, I note that the Appellant has not argued on appeal that he did make reasonable efforts to obtain the original medical report. I agree with the RPD that the Appellant has not demonstrated due diligence in his attempts to obtain the original medical report, and I agree that the largely illegible copy presented deserves little evidentiary weight. [36] The Appellant further submits that the RPD erred in rejecting the Appellant's allegation that he was assaulted in June 2016 because it failed to consider an article that was submitted as corroborative evidence. However, the article cited by the Appellant in his memorandum is from November 2014 and addresses the assault that occurred at that time,14 the fact of which was accepted by the RPD. There is no news article or other corroborative evidence of the alleged June 2016 assault on the Appellant. [37] Further, as noted by the RPD, this alleged assault was not even mentioned in the Appellant's BOC narrative. While he testified that he had created an amendment to his narrative which should have been submitted, the fact is that no amendment was submitted and I agree with the RPD that no reasonable explanation was given for the omission of this significant event that purportedly occurred just before he initially fled from Bahrain. [38] In consideration of the foregoing, I find that the RPD correctly concluded that the allegation that the Appellant was assaulted in June 2016 is not established on a balance of probabilities. The RPD correctly found that the Appellant is not generally credible [39] The RPD noted in its reasons that it found the Appellant to be generally lacking in credibility. The Appellant submits that the RPD erred by finding that he was generally lacking in credibility while at the same time accepting some of his key allegations, including the allegations that he was formerly married to his ex-wife and of the 2014 election attack. He submits that it was illogical and unreasonable for the RPD to accept these key allegations while at the same time making a general adverse credibility finding against him. [40] I do not agree with the Appellant that the RPD's credibility findings are mutually exclusive. It was not an error for the RPD to find the Appellant generally lacking in credibility even while accepting some allegations that were credibly corroborated. This is the correct approach. Even where the presumption of truthfulness of sworn testimony is rebutted, it is necessary to consider the remaining evidence to determine whether it is capable of proving the allegations. [41] Despite its general credibility finding, the RPD went on to consider all of the evidence before it and accepted the allegations that the Appellant had been married at one point to his ex-wife and that there had been an attack connected XXXX XXXX XXXX XXXX XXXX XXXX, on the basis of documentary evidence which it deemed to be credible including the divorce certificate, family photographs and a news article reporting on the 2014 incident.15 [42] Having reviewed the corroborative evidence provided, I agree with the RPD that the facts of the Appellant's marriage to his ex-wife and the election time incident in 2014 are established on a balance of probabilities, on the basis of the documentary evidence in the record. [43] I note that the Appellant has not raised any arguments with respect to the RPD's findings related to the BOC omissions, upon which the general adverse credibility finding was founded. The omissions noted by the RPD include not only the June 2016 assault, but also allegations made at the hearing that the Appellant has received numerous threats through his ex-wife, that he was terminated from his former job in 2015 on the basis of his ex-wife's XXXX XXXX as well as his own nationality and religion, and that his ex-wife held and was known for anti-Shia viewpoints which radical Shias in Bahrain blamed on and imputed to the Appellant. [44] These are significant details related to basis of the Appellant's claim that should have been included in the BOC narrative. As the RPD did, I find that these omissions were not reasonably explained and I draw an adverse inference on that basis. I reject these allegations and I further find that these omissions, along with the other adverse credibility findings outlined above, are sufficient to displace the presumption of truthfulness of the Appellant's sworn testimony. [45] For the above reasons, I conclude that the RPD did not err by finding that the Appellant was generally lacking in credibility. The RPD correctly assessed the Appellant's forward-facing risk in Bahrain on the basis of his association to his ex-wife [46] The RPD assessed the Appellant's risk of future harm and persecution in Bahrain and concluded that he had not established a well-founded fear of persecution. The panel noted that while the Appellant's claim was based on his association to his XXXX XXXX XXXX XXXX, including his own political opinions and those imputed on the basis of such association, he is no longer married to her. Moreover, there is no credible evidence that the Appellant, his ex-wife or their family had experienced any problems from the alleged agents of persecution since 2014, even despite his XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [47] The Appellant argues that the RPD erred in its assessment of forward-facing risk by making unsupportable implausibility findings with respect to the alleged agents of persecution. He submits that the RPD's finding that the extremists who previously pursued the Appellant would no longer be interested in him is a veiled implausibility finding, and that the RPD erred by relying on its own view of how extremists behave. The Appellant submits that implausibility findings may only be made in the clearest of cases and argues that in the context of a previous attack, it is not implausible that the Appellant might be harmed by extremists in the future. [48] I reject this argument. Plausibility findings in refugee law relate to the truthfulness of testimony about events that are purported to have taken place in the past. Plausibility is intertwined with credibility and is related to the assessment of the truth of the allegations of what has already happened to a claimant. [49] Here, the panel was not determining the plausibility or credibility of the Appellant's recounting of past events, rather it was engaging in an objective assessment of the probability that events which are said to be subjectively feared by the Appellant will come to pass. The assessment of forward-facing risk is one of probability, not plausibility. Every refugee claim necessarily entails such an assessment, and the law places the onus on the Appellant to establish that he faces a certain probability of risk in the country of reference in the future. [50] While the RPD accepted that the Appellant had experienced some difficulties in the past due to his association with his XXXX XXXX XXXX XXXX XXXX it concluded that it was not likely that he would face future harm or persecution on that basis since he is no longer married to her, and there is no credible evidence that either he or his ex-wife have experienced any difficulties from the alleged agents of persecution since 2014. [51] The threshold that must be established with respect to the probability of future persecution on a Convention ground is a "serious possibility" or "reasonable chance", while a section 97 risk must be established on a balance of probabilities. The Appellant further submits that the RPD erred in its assessment of the prospective risk faced by the Appellant in Bahrain, as it considered whether he had established a well-founded fear of persecution on a balance of probabilities, rather than the correct threshold of "serious possibility" or "reasonable chance" of persecution. [52] Having reviewed the RPD's reasons carefully, I note that the RPD mentions both that the Appellant did not establish his allegations on a balance of probabilities, and also that the panel finds that the Appellant will face no more than a mere possibility of persecution. In the absence of a clear statement of the legal test applied, I agree with the Appellant that the RPD erred in law by misstating the legal standard in its assessment. However, I find that this is not a determinative error. [53] Having conducted my own independent assessment of the Appellant's forward-facing risk using the correct threshold, I find that the Appellant has not established that he will face a serious possibility of persecution in Bahrain, or a section 97 risk on a balance of probabilities, on the basis of his association to his ex-wife, his own political opinions or any imputed political opinions based on this association. [54] The Appellant's argument that it is not implausible that he might be harmed by extremists in the future does not adequately address the likelihood of such harm taking place. It is not enough to establish a mere possibility of persecution. [55] While it is established in the evidence that the Appellant and his ex-wife were involved in an attack perpetrated by the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, there is no credible evidence before me to suggest that there have been any further attacks or threats. Over five years have passed with no further problems for the Appellant, his ex-wife or his family, even after his ex-wife XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [56] I find that on a balance of probabilities, the alleged agents of persecution are no longer interested in pursuing the Appellant. While the Appellant may have a subjective fear of persecution or harm XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, I do not find that he has established a valid objective basis for that fear. As such, he has failed to establish a well-founded fear of future persecution in Bahrain. The RPD correctly found that the Appellant does not face a serious possibility of persecution on the basis of his Pakistani nationality [57] In addition to the allegations of risk due to his association with his ex-wife, the RPD also considered the Appellant's allegation that he would be at risk in Bahrain on the basis of his Pakistani origin. While the Appellant pointed to instances of Shia attacks on police officers of Pakistani origin, the RPD found that these attacks were more likely than not based on their status as police officers and not on their nationality. The panel found that there was no objective evidence of persons of Pakistani ethnicity or nationality facing persecution in Bahrain, and drew an adverse inference from the Appellant's failure to provide corroborative evidence of such country conditions, which should be reasonably available. [58] The Appellant has not disputed this finding and I agree with it for the reasons given by the RPD. As such, I find that the Appellant has failed to establish that he faces a serious possibility of persecution, or a section 97 risk on a balance of probabilities, on the basis of his Pakistani ethnicity or nationality. CONCLUSION [59] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act, I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Cheryl Braden Cheryl Braden July 30, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 2 Exhibit RPD-1, RPD Record, RPD Exhibit 7, pp. 112-113. 3 Ibid., Exhibit 9, pp. 119-120. 4 Ibid., Exhibit 5, p. 103. 5 Ibid., pp. 94-95. 6 Immigration and Refugee Protection Act (S.C. 2001, c. 27), at section 97. 7 Exhibit RPD-1, RPD Record, RPD Reasons, p. 3. 8 Ibid., p. 6. 9 RPD Hearing Recording, September 7, 2018, 2:36:30. 10 Ibid., 2:37:08. 11 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII), at para. 7. 12 RPD Hearing Recording, September 7, 2018, 10:57. 13 Ibid., 2:44:20. 14 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 92-93. 15 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 92-93; see also Exhibit 9, pp. 119-120; see also Exhibit 10, pp. 121-122. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-24985 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français